OTTAWA — The hearing room at the Canadian Human Rights Tribunal smelled of burnt herbs and smoke Tuesday as Algonquin elder Annie Smith-St. George led a traditional smudging ceremony just before preliminary motions were heard in a case that pits the Assembly of First Nations and child welfare advocates against the federal government.

Speaking firmly into a microphone, Smith-St. George called on the room to come together and resolve the issue that the groups had been sparring over for the past five years: the alleged discrimination of First Nations children.

“Our children are on the agenda,” said Smith-St. George, who said she lost her own child to suicide. “Our children, at this point in time, are suffering. They are calling for help.”

A three-person panel at the Canadian Human Rights Tribunal heard preliminary motions on Tuesday from the Attorney General of Canada, and from the First Nations and child welfare groups who allege that the federal government discriminates against First Nations children by consistently underfunding services on reserves.

This underfunding leads to poverty, poor housing, substance abuse and a vast over-representation of aboriginal children in state care, they say.

The core issue is whether the government can be held legally responsible for the circumstances of native children in the child-welfare system. Under the Indian Act, the federal government is responsible for funding health, education, police services and child welfare on reserves, all of which fall under provincial jurisdiction off reserves.

Research cited by the assembly and the caring society indicates children on reserve receive 22 per cent less funding for services than those who live off reserve.

In April, the Federal Court overturned a previous tribunal decision to dismiss the case and ordered it returned to the Canadian Human Rights Tribunal for a new hearing. The Attorney General of Canada has appealed that ruling.

On Tuesday, lawyer Jonathan Tarlton, senior counsel with the department of justice, argued that some of the evidence – including reports about the residential school system – should not be allowed to be submitted. These reports would complicate the proceeding and, in some cases, are not relevant to the issue, Tarlton said during the proceedings.

But Paul Champ, who represented the First Nations Child and Family Caring Society of Canada, argued that evidence establishes a historical pattern of discrimination. The Canadian Human Rights Tribunal should hear that history, he said

“The strange evolution of how public services are delivered to First Nations children is bound up in what happened with residential schools, and the strange funding formulas that we have now that determine how child welfare services are delivered is the product of that history,” Champ said.

All of the evidence stacks up that the federal government is discriminating against First Nations children, alleged Cindy Blackstock, the executive director of the First Nations Child and Family Caring Society of Canada.

“What we want is equitable funding for kids, with a real emphasis on culturally based services and supports for families,” Blackstock said.

“What we’re asking for is nothing more than what other Canadians take for granted.”

The preliminary hearing will continue on Wednesday, when it is expected that a date for the full hearing will be set.